Dr. Brian Kirsh

The plaintiff sued her former lawyer for negligence and breach of contract arising from an allegedly improvident settlement of her accident benefits claim in May 2014.

The plaintiff claimed the lawyer failed to advise her adequately regarding income replacement benefits, failed to discourage her from settling prematurely, and failed to advise her of the potential for catastrophic impairment designation which would have entitled her to significantly enhanced benefits.

The court found that while the lawyer breached the standard of care in several respects, the plaintiff failed to establish causation because she did not prove she would have acted differently with proper advice.

Additionally, the plaintiff failed to mitigate her damages by not attempting to set aside the settlement when she became aware of the defect.

The court also found the plaintiff failed to establish that she would have been found catastrophically impaired.

The action was dismissed.

The plaintiff tripped and fell at the defendant hospital, which admitted liability for the hazard.

The plaintiff claimed the physical injuries from the fall prevented her from caring for her terminally ill husband at home, forcing his return to the hospital where he died.

She sought damages for severe psychological injury (PTSD) stemming from her guilt over failing to fulfill his dying wish.

The court dismissed the claim, finding the plaintiff failed to establish factual causation, as her physical pain likely resulted from the unreasonable strain of caring for her husband alone, and her psychological symptoms were more likely attributable to pre-existing depression and complex bereavement.

The court further held that the alleged chain of causation was too remote to establish legal foreseeability.

The defendant moved to compel the plaintiff to reattend an independent medical examination (IME) with a psychiatrist, Dr. Brian Kirsh, for psychometric testing.

The plaintiff opposed this motion and brought a cross-motion to compel Dr. Kirsh to produce a report based on his initial assessment, arguing the examination was complete.

The court found that the initial IME was indeed completed, despite the psychiatrist's assertion of incomplete testing.

Consequently, the defendant's motion was dismissed, and the plaintiff's cross-motion was granted, ordering Dr. Kirsh to produce his report.

The plaintiff agreed to attend a subsequent IME for psychometric testing after the report's disclosure.

The applicant was injured in a pedestrian knockdown and sought ongoing income replacement and medical benefits.

The insurer terminated benefits, alleging the applicant was exaggerating her symptoms and sought repayment of an overpayment.

The arbitrator found the applicant's presentation of chronic pain and emotional impairments to be genuine, rejecting the insurer's expert who admitted a bias toward skepticism.

The applicant was awarded ongoing income replacement benefits as she was completely unable to engage in suitable employment.

The insurer's claim for repayment was dismissed as the overpayment resulted from an employer error, not the applicant's wilful misrepresentation.

Medical benefits were partially awarded.

The applicant was injured in a motor vehicle accident and received income replacement benefits until the insurer terminated them after 104 weeks.

The applicant sought arbitration, claiming a complete inability to engage in any employment for which she was reasonably suited.

The arbitrator reviewed the applicant's education, training, and work history, noting she primarily worked part-time.

Relying on the consensus of the applicant's own medical experts that she could return to part-time sedentary work, the arbitrator found she did not meet the test for complete inability to work.

The application for income replacement benefits and a special award was dismissed.

The applicant was injured in a motor vehicle accident and sought various statutory accident benefits that the insurer had terminated or denied.

The arbitrator found that the applicant's ongoing chiropractic and massage therapy treatments were reasonable for pain relief, and that her physical and cognitive limitations justified the cost of taxi transportation to treatment sessions and ongoing housekeeping expenses.

However, the claim for opioid prescription medication was denied, as the weight of medical opinion indicated it was not beneficial and potentially harmful.

The arbitrator rejected the applicant's argument that her income replacement benefits should include the indexation percentage for the first year following the onset of disability, finding the statutory language clear.

Finally, the arbitrator ordered the insurer to pay a $5,000 special award for unreasonably withholding payment for treatments and medication in blatant disregard of the pay-pending-dispute provisions of the Schedule.